Immigration for foreign national students

Susan BondLaw Office of Susan Bond

This presentation will cover the following topics:

• Work authorization for foreign national (FN) students while enrolled in school and upon graduation

• F-1

• J-1

• Changing your status from F-1 to a different non-immigrant status that authorizes employment

• Applying for Lawful Permanent Residence (LPR)

WORK AUTHORIZATION WHILE IN F-1 STATUS

Two kinds of training that allow FN students to work while in F-1 status: •CURRICULAR PRACTICAL TRAINING (CPT)•OPTIONAL PRACTICAL TRAINING (OPT)

– This includes a 17-month STEM extension

Overview of CURRICULAR PRACTICAL TRAINING

CPT requires a signed cooperative agreement or a letter from FN’s employer.

FN can work on CPT either full-time or part-time.

When FN enrolls at the graduate level, the designated school official (DSO) may authorize CPT during the first semester if the program requires this type of experience.

The DSO will provide the FN with a new Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” that shows that the DSO has approved the FN for the particular employment.

The CPT must relate to the FN’s major and the experience must be part of the program of study.

If FN has 12 months or more of full-time CPT, FN is ineligible for OPT, but part-time CPT is fine and will not prohibit FN from doing OPT.

MUST RELATE TO DEGREEMUST RELATE TO DEGREE SIGNED LETTER / AGREEMENTSIGNED LETTER / AGREEMENT FULL TIME OR PART-TIMEFULL TIME OR PART-TIME

OPT ELIGIBILTYOPT ELIGIBILTY GRADUATE SCHOOLGRADUATE SCHOOL USE I-20 TO WORKUSE I-20 TO WORK

Overview of OPTIONAL PRACTICAL TRAINING

The FN can apply for 12 months of OPT at each education level i.e. 12 months for Bachelor’s and 12 months for graduate level

The DSO will provide the FN with a new Form I-20 that shows the DSO recommendation for this employment.

USCIS will send the FN a Form I-766, “Employment Authorization Document” (EAD) upon approving the Form I-765. Processing times for the EAD can be up to 90 days. The FN must wait until receiving the EAD to start work.

While school is in session, the FN may only work 20 hours per week.

OPT must relate to the FN’s major or course of study.

The FN must apply for work authorization by filing a Form I-765, “Application for Employment Authorization,” with U.S. Citizenship and Immigration Services (USCIS) and paying a filing fee.

MUST RELATE TO DEGREEMUST RELATE TO DEGREE 12 MONTHS FOR EACH LEVEL12 MONTHS FOR EACH LEVEL NEW FORM I-20NEW FORM I-20

HOW TO OBTAIN WORK HOW TO OBTAIN WORK PERMITPERMIT

PROCESSING TIMESPROCESSING TIMES LIMIT ON WORK HOURSLIMIT ON WORK HOURS

17 month opt stem extension

Some students qualify for an additional 17 months of OPT under the following circumstances:•The degree for the student’s current period of post-completion OPT is a Bachelor’s, Master’s or Doctoral degree in a science, technology, engineering or mathematics (STEM) program.•The employer from which FN is seeking employment uses the E-Verify program.•FN has not previously received a 17-month extension of OPT.•The DSO must provide the FN with a new Form I-20 that shows the DSO recommendation for this employment.•The FN must apply for work authorization by electronically filing a Form I-765 with USCIS and paying a filing fee. USCIS will send you an EAD upon approving your petition.•The FN may continue to work on his/her expired EAD for OPT up to 180 days while the 17-month extension petition is pending if these conditions are met:

– The FN is currently in a period of post-completion OPT.– The application for the 17-month extension was filed prior to the

expiration of the current OPT.

WORK AUTHORIZATION AFTER completion of degree programWORK AUTHORIZATION IN J-1 STATUSWORK AUTHORIZATION IN J-1 STATUS H-1B SPECIALITY OCCUPATIONSH-1B SPECIALITY OCCUPATIONS

TN NAFTA PROFESSIONALSTN NAFTA PROFESSIONALS

O VISA FOR INDIVIDUALS WITH EXTRAORDINARY ABILITYO VISA FOR INDIVIDUALS WITH EXTRAORDINARY ABILITY

OBTAINING PERMANENT RESIDENCEOBTAINING PERMANENT RESIDENCE

The above-mentioned types of work authorization are available to FN students who are in F-1 status, both during the time they are enrolled in classes and after graduation.

After the FN completes her or his studies, she can still obtain work authorization through various ways.

WORK AUTHORIZATION WHILE IN J-1 STATUS• Employment is authorized pursuant to J-1 status, and

there is no application required to prove work authorization. The J-1 is usually issued in one year increments.

• Some exchange visitors are subject to a 2 year home residence requirement, while others aren’t. If the FN is not subject to the 2 year home residence requirement, s/he may apply to change to another non-immigrant status, assuming they are otherwise eligible for that status. If the FN is subject to the 2 year home residence requirement, s/he must obtain a waiver of the requirement.

• An exception is made for those changing from J-1 status to O status for extraordinary ability—although few students/exchange visitors will meet the stringent requirements for this classification, there is no requirement that you get a waiver before changing to O status.

Changing from F-1 to a non-immigrant status that allows employment

Speciality occupations

H-1BH-1B

TN NAFTATN NAFTA

Limited to foreign nationals from Canada and MexicoO VISAO VISA

For foreign nationals with extraordinary ability

Keep in mind that a student on F-1 is given a 60 day grace period to depart, apply for a change of status or re-enroll in school. There are exceptions/special rules regarding this 60 day period for a FN who has applied to change to H-1B status, as outlined below under “Cap Gap Rules.”

On the left are some of the most common non-immigrant visa categories that grant work authorization.

H-1B Speciality occupations• This category allows a FN to obtain work authorization for up

to 6 years for a US Company, University or Research Organization.

• The basic requirements are that the position to be filled is a professional level position, requiring at least a bachelor’s degree or the equivalent; and that the FN possesses at least a bachelor’s degree in the field that the job offer is in.

• The H-1B category covers professional occupations, such as civil and mechanical engineers, computer science professionals, scientists, professors, research associates, etc.

H-1B Speciality occupations• The FN must have an offer of employment (it can be

part-time or full-time) but the FN may not be self-employed on H-1B.• There are limits on the numbers of H-1B visas

issued each fiscal year, with only 65,000 new visas issued each year + an additional 20,000 for FN who hold a Master’s degree. The new fiscal cap starts October 1 of each year, and applications may be submitted on or after April 1 for an employment start date of October 1.

• Institutions of higher education and not-for-profit organizations affiliated with institutions of higher education are exempt from the H-1B cap.

• The Cap Gap Rules: An employer can file an H-1B on behalf of a FN no sooner than April 1 for a start date of employment on October 1.

• What if the FN’s OPT expires prior to October 1st? The Cap Gap Rule allows the FN to have continued work authorization if the student is currently in valid F-1 status, and a period of OPT, and an application to file for H-1B has been filed while the FN is in status. Work authorization is automatically extended during this time, and until either September 30th, or the H-1B petition has been adjudicated.• If the H-1B is denied, work authorization ends and the 60

day grace period normally allowed for F-1 students begins.• If the FN is applying for a job with an employer that is not

subject to the H-1B cap (university for example), the Cap Gap Rule is not needed, as the H-1B employment may begin at any time during the year, and not subject to the October 1st start date.

• If the student is not in valid F-1 status, the Cap Gap Rule is not available.

TN NAFTA PROFESSIONALS

• TN NAFTA Professionals: This is a non-immigrant status that is available to citizens of Mexico and Canada, pursuant to a treaty agreement between the U.S., Canada and Mexico.

• TN status is a good option for those who may be seeking employment with the private sector, and the company is not receptive to the H-1B process, which may be seen as cumbersome.

• There are limited professions that are eligible for TN status, which are listed on the NAFTA job list. Chemists are on the list of professions covered by NAFTA.

• TN visas may be issued in 1-3 year increments, and there is no limit on the number of years you may hold TN status, as there is for H-1B.

O Visas for extraordinary ability• The O Visa category for Individuals of Extraordinary

Ability: A non-immigrant status that allows an individual to live and work in the United States. This category is an option for those who do not have an employer willing to sponsor the H-1B visa, and they do not qualify for the TN visa.

• The process for an employer is less burdensome, however the criteria for eligibility is very high, and includes in part:• The FN must prove that s/he has risen to the top of

their field of endeavor, and has national or international acclaim.

• Proof of the above would be publications in scientific journals, significant contributions to the field of science; awards and recognition from the scientific community.

• This category is not usually beneficial to a student upon graduation, unless that student is exceptional.

SEEKING PERMANENT RESIDENCE THROUGH EMPLOYMENT BASED VISAS• Now that you have obtained non-immigrant status and work

authorization, how do you become a permanent resident? What different avenues are available and what factors are relevant?

Key issues to remember:• Obtaining permanent residence/a green card in the United

States, requires an offer of full-time employment by a US company or university, with few exceptions as outlined below.

• The processing times for permanent residence will be based on factors such as the position to be filled and the requirements for the position. For example, if it is a higher level position requiring a Master’s or Ph.D, the processing times are faster, because fewer people are qualified for these positions and fewer people are applying/in line. The country of birth of the applicant also impacts processing times.

• Even while your permanent residence is in process, you must maintain your non-immigrant status and work authorization. Having permanent residence on file does not automatically grant work authorization.

Eb-3 - Skilled Worker and Professional positions

• Job requires two year or Bachelor’s degree

• The employer must first file a Labor Certification to prove that there are no eligible US workers available for the position.

• Assuming there are no US workers available, the employer files an I-140 Visa Petition on behalf of the employee.

• Once the I-140 is approved, and/or the priority date is current, the application to become a Permanent Residence is filed.

EB-2 – ADVANCED DEGREE AND EXCEPTIONAL ABILITY

Members of the Professions with an Advanced Degree:•The employer must first file a Labor Certification to prove that there are no eligible US workers available for the position.•Assuming there are no US workers available, the employer files an I-140 Visa Petition on behalf of the employee. •Once the I-140 is approved, and/or the priority date is current, the application to become a Permanent Residence is filed.

National Interest Waiver.An individual may qualify for the EB-2 category of “Exceptional Ability” and may avoid the Labor Certification process, if the position is one that is in the National Interest by filing a National Interest Waiver.•National Interest means that the job will benefit the US healthcare, environment, education system, etc. These positions are usually funded by government grants and must substantially benefit the US on a national level, and the FN must play a critical role in the work that’s being done.

EB-1 – EXTRAORDINARY ABILITY• Aliens of Extraordinary Ability:

• No requirement for offer of employment and no labor certification requirement to show there are no available US workers. The standard is very high—think rocket scientists, cutting edge research to save lives and cure diseases or inventions that make our country safer.

• The person who qualifies for this category has already risen to the top of his/her field of endeavor or has accomplishments that are not normally found among his peers, such as winning national or international awards.

• Outstanding Researcher or Professor:• This category does require an offer of full-time

employment but does not require a labor certification to prove there are no US workers. The standard of evidence is similar to that listed above but not as stringent in that the person does not need to prove he/she has risen to the top of the field.

• The USCIS does closely scrutinize whether there is an offer of full-time employment. If the position is a not a tenured track position at a university, this may be problematic, so post-doc researchers may have problems applying through this category. Researchers may pursue employment at scientific research organizations however, and qualify for this category.

STUDY AND WORKSMART

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